Petition for Writ of Certiorari — Michael David Scott, Petitioner v. United States

APPENDIX

United States Court of Appeals

For the First Circuit

______________________________

No. 15-2405

UNITED STATES,

Appellee,

v.

MICHAEL DAVID SCOTT,

Defendant, Appellant.

__________________

JUDGMENT

Entered: December 8, 2017

This cause came on to be heard on appeal from the United States District Court for the

District of Massachusetts and was argued by counsel.

Upon consideration whereof, it is now here ordered, adjudged and decreed as follows:

Michael David Scott's conviction and sentence are affirmed.

By the Court:

/s/ Margaret Carter, Clerk

cc:

George F. Gormley

Michael David Scott

Ryan Michael DiSantis

William D. Weinreb

Dina Michael Chaitowitz

Victor A. Wild

David Brian Goodhand

United States Court of Appeals

For the First Circuit

______________________________

No. 15-2405

UNITED STATES,

Appellee,

v.

MICHAEL DAVID SCOTT,

Defendant, Appellant.

__________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Richard G. Stearns, U.S. District Judge]

__________________

Before

Howard, Chief Judge,

Thompson and Kayatta, Circuit Judges.

__________________

George F. Gormley, Stephen Super, and George F. Gormley, P.C.,

on brief for Petitioner.

David B. Goodhand, Attorney, U.S. Department of Justice,

Criminal Division, Appellate Section, with whom William D.

Weinreb, Acting U.S. Attorney, Victor A. Wild, Assistant U.S.

Attorney, Ryan M. DiSantis, Assistant U.S. Attorney, Kenneth A.

Blanco, Acting Assistant Attorney General, U.S. Department of

Justice, and Trevor N. McFadden, Deputy Assistant Attorney

General, were on brief, for appellee.

__________________

December 8, 2017

__________________

2a

KAYATTA, Circuit Judge. Michael David Scott appeals

from his conviction and sentence for wire fraud, bank fraud, and

money

laundering,

associated

with

a

mortgage

fraud

scheme

perpetrated in the Boston area. His principal argument is that

the government unfairly procured his guilty plea by misusing

information

he

provided

during

proffer

sessions.

He

also

challenges his sentence. For the following reasons, we affirm.

I. Background

In February 2008, the government began investigating Scott

as a result of a civil case against him in Massachusetts

state court involving a mortgage fraud scheme Scott operated in

and around Boston. Scott purchased multi-family homes, divided

them into condominium units, and then recruited straw buyers to

purchase the units at prices favorable to Scott. He attracted

buyers by promising that they would not have to put up any money

for the purchase and would ultimately be able to sell for a profit.

Scott and his team also prepared false mortgage applications and

closing documents in order to secure inflated loans for the buyers.

Scott then used the loan proceeds to pay off his own mortgage on

the building, and pocketed the profit.

In February 2009, the government informed Scott of the

federal investigation against him. On February 23, 2009, Scott

and his attorney met with two Assistant United States Attorneys,

as well as three FBI Special Agents. At that meeting, Scott signed

3a

a proffer agreement with the government. The agreement provided,

among other things:

1. No statements made or other

information provided by Michael Scott will be

used by the United States Attorney directly

against him, except for purposes of cross

examination and/or impeachment should he offer

in any proceeding statements or information

different from statements made or information

provided by him during the proffer, or in a

prosecution of Michael Scott based on false

statements made or false information provided

by Michael Scott.

2. The government may make derivative use

of, or may pursue any investigative leads

suggested by, any statements made or other

information provided by Michael Scott in the

course of the proffer. Any evidence directly

or indirectly derived from the proffer may be

used against him and others in any criminal

case or other proceeding. This provision is

necessary in order to eliminate the

possibility of a hearing at which the

government would have to prove that the

evidence it would introduce is not tainted by

any statements made or other information

provided during the proffer. See Kastigar v.

United States, 406 U.S. 441 (1972).

After he signed the proffer agreement, Scott gave the

government information regarding the fraudulent condominium sales

he had conducted, including information about the fake paperwork he

provided to secure loans. Scott also provided information regarding

the roles played by James Driscoll, a sales loan officer employed

by both a mortgage company and a bank, and Michael Anderson, a real

estate lawyer, in the mortgage fraud scheme. Over the course of

three proffer sessions held in March 2009, Scott

4a

provided the government with detailed information regarding

Driscoll -- that he often worked from home and that he kept copies

of the mortgage paperwork from his employers at home -- as well as

information regarding the physical layout of Driscoll's home.

Using this information, the government applied for a search warrant

of Driscoll's home, which was approved on March 16, 2009.

On May 15, 2009, the government got Scott to sign two

consent-to-search forms authorizing the government to make

forensic images of his computer and server. The forms allowed the

FBI to conduct "a complete search" of Scott's Compaq computer and

Dell server. The forms stated, among other things, that Scott

gave "permission for this search, freely and voluntarily, and not

as the result of threats or promises of any kind" and "authorize[d]

[FBI] Agents to take any evidence discovered during this search,

together with the medium in/on which it is stored, and any

associated data, hardware, software and computer peripherals."

Scott's attorney was not present at this meeting, although he had

authorized it. Scott continued to meet with the government for

proffer sessions, for a grand total of eighteen sessions, ending

in June 2010. Starting in the fall of 2009, Scott and the

government also engaged in plea negotiations that ultimately fell

apart.

In January 2010, while proffer sessions and plea

negotiations were ongoing, Scott began meeting with members of the

5a

accounting firm Verdolino & Lowey ("V&L"). Back in April 2009,

Scott had filed for bankruptcy and a United States Trustee was

appointed to oversee the proceeding. V&L served as the accountant

for the bankruptcy trustee. Once Scott began meeting with V&L, he

provided the firm with his business records in paper form, as well

as access to images of the content of his computer server and

laptop.

About a month after the final proffer session with Scott,

the government withdrew an unaccepted plea agreement it had

proposed. Shortly thereafter, the government convened a grand

jury, calling one of the FBI agents involved in Scott's case as

its sole witness. The grand jury indicted Scott on 62 counts on

August 26, 2010. On September 16, the government obtained a 68count superseding indictment against Scott. The superseding

indictment also charged Jerrold Fowler, the founder of an

investment company, and Thursa Raetz, a credit union

representative, for their participation in the mortgage fraud

scheme.

Seventeen months later, the bankruptcy trustee told

prosecutors that he would likely dismiss Scott's bankruptcy

petition. The prosecutors asked the trustee to preserve the

materials Scott had provided to V&L, but the trustee did not turn

over the materials, citing conflicting legal duties. The trustee

dismissed Scott's petition on March 14, 2012, and the government

6a

soon after applied for a search warrant to seize the computer

images and paper files Scott had provided to V&L. The affidavit

submitted in support of the search warrant relied in large part on

data obtained from Scott's server, which had been imaged in

May 2009 pursuant to Scott's written consent. The application

explicitly sought to search "the same server" as well as the boxes

of materials that Scott had provided to V&L. The magistrate judge

assigned to Scott's case approved the warrant application on

March 21, 2012, and the government executed the warrant. In a

discovery letter sent in June 2012, the government informed Scott

that the hard drives it had imaged from V&L were the same as the

images the government had taken directly from Scott in 2009.

On February 6, 2013, the magistrate judge held a status

conference, during which the government represented that, with one

exception not relevant here, "every piece of information presented

to the Grand Jury came from an independent source."1 The

implication of this statement in context was that the evidence

presented to the grand jury was derivative of (but did not directly

__________________

The portion of the conference transcript Scott quotes in

his briefing actually reflects Scott's own attorney's

characterization of the government's position "that every piece of

information presented to the Grand Jury came from an independent

source." This does not impact our analysis, however, because the

government immediately thereafter responded, "That's correct." We

therefore treat the representation as if it had come directly from

the government.

1

7a

make use of) evidence obtained from Scott himself, and therefore

conformed to the proffer agreement.

When Scott learned that the government intended to use

evidence from the March 2012 search of V&L in its case against

him, he moved to suppress the evidence. Scott argued that using

that evidence "was a blatant end-run around the proffer agreement"

and that V&L, acting under the government's instruction, violated

the Fourth Amendment when it retained custody of Scott's property

after his bankruptcy petition was dismissed. The government

countered that the terms of the consent Scott provided in May 2009

placed his searched property outside the scope of the proffer

agreement, thereby rendering it unprotected. The government

further argued that even if that were not the case, the use of

data obtained in the March 2012 search was permissible derivative

use. The court rejected the government's arguments and granted

Scott's motion to suppress "the cloned files" seized pursuant to

both Scott's consent forms and the search of V&L.

Over a year later, on May 29, 2015, the district court

accepted Scott's unconditional plea of guilty to the superseding

indictment. At sentencing, the court determined the applicable

guideline sentencing range to be 135 to 168 months. See U.S.

Sentencing Guidelines Manual ("U.S.S.G.") ch. 5, pt. A (U.S.

Sentencing Comm'n 2015). The court arrived at this range after a

downward departure for Scott's acceptance of responsibility and

8a

another reduction of "two levels to give Mr. Scott the benefit of

the doubt as to the loss calculation." The court ultimately

sentenced Scott to 135 months' imprisonment on counts 1 through 46

and 120 months' imprisonment on counts 47 through 68, to be served

concurrently.2 Fowler and Raetz were each sentenced to 24 months'

imprisonment, after most of the counts against them were dismissed.

The court also ordered Scott to pay over $11 million in

restitution. Scott timely appealed his conviction and sentence.

II. Discussion

Scott challenges his conviction on the grounds that the

government breached the proffer agreement, both by presenting

evidence to the grand jury that was obtained directly from him and

by continuing to prosecute him even after the court granted his

motion to suppress. Scott also challenges his sentence to

135 months of imprisonment, on the grounds that it was procedurally

improper and substantively unreasonable. We address each argument

in turn.

A.

As his principal basis for appeal, Scott asks that we

vacate his conviction and sentence and remand for a Kastigar

hearing, see Kastigar v. United States, 406 U.S. 441, 448–60

(1972), to determine what, if any, evidence obtained during his

__________________

2 Scott challenges only his 135-month sentence. We therefore

omit any further discussion of his concurrent 120-month sentence.

9a

proffer sessions was used by the government to secure his

indictment and prepare for trial.

Scott's request faces an immediate problem: his

unconditional guilty plea. Once a criminal defendant enters such

a plea, "he may not thereafter raise independent claims relating

to the deprivation of constitutional rights that occurred prior to

the entry of the guilty plea." Tollett v. Henderson, 411 U.S.

258, 267 (1973).3 In this circuit, "[w]e have assiduously followed

the letter and spirit of Tollett, holding with monotonous

regularity that an unconditional guilty plea effectuates a waiver

of any and all independent non-jurisdictional lapses that may have

marred the case's progress up to that point." United States v.

Cordero, 42 F.3d 697, 699 (1st Cir. 1994) (collecting cases).4

__________________

3 At

least two exceptions to the Tollett rule have been

recognized but are not applicable here. See Menna v. New York,

423 U.S. 61, 62 (1975) (per curiam) (holding that Tollett does not

prevent a defendant from challenging a conviction based on the

double jeopardy clause); Blackledge v. Perry, 417 U.S. 21, 30

(1974) (holding that Tollett does not prevent a defendant from

using a federal writ of habeas corpus to challenge the "very power

of the State to bring the defendant into court" where the state's

vindictive prosecution denied him due process of law).

4 The Supreme Court has declined to frame the Tollett line of

cases as establishing a waiver rule. See Menna, 423 U.S. at 62

n.2 (clarifying that the Tollett rule is not that counseled guilty

pleas waive antecedent constitutional violations, but rather that

such a reliable admission of factual guilt "simply renders

irrelevant those constitutional violations"); see also Tollett,

411 U.S. at 267 (finding that the defendant's guilty plea

"forecloses independent inquiry" into a claim of error regarding

the grand jury notwithstanding the absence of "waiver" in the

traditional sense of the word). Because this distinction has no

10a

Tollett does not, however, prevent a defendant from arguing that

his guilty plea was involuntary. Tollett, 411 U.S. at 267; see

also United States v. Castro-Vazquez, 802 F.3d 28, 33 (1st Cir.

2015) ("So long as the unconditional guilty plea is knowing and

voluntary, the Tollett rule applies.").

To work around Tollett, Scott argues that his guilty

plea was not voluntary because it was based on a government-induced

misapprehension that the government had proof for its case that it

was permitted to use under the terms of the proffer agreement.

Before turning to this argument, we consider the appellate standard

of review.

Scott never asked the district court to do what he asks

us to do: let him withdraw his guilty plea and conduct a Kastigar

hearing to challenge his indictment. This failure continued even

after June 1, 2015, the day on which he claims that he personally

learned, months prior to sentencing, of the government's alleged

misconduct. The closest he came to doing so was a letter Scott

wrote to the district court dated September 2, 2015, which was

filed under seal and which Scott included in a sealed appendix on

appeal. In his briefing before this court, Scott characterized

his letter to the district court as expressing regret that he had

entered a guilty plea "in light of the Grand Jury testimony." But

_________________

impact on our analysis, we apply the waiver language used in

Cordero.

11a

plainly, the letter reflects that Scott did not characterize his

plea as involuntary and, more importantly, did not make a request

to withdraw his plea pursuant to Rule 11(d). See Fed. R. Crim.

P. 11(d)(2)(B). Nor did he subsequently move for withdrawal. At

sentencing, neither Scott nor his attorney mentioned the September

letter or moved to withdraw Scott's plea. Understandably, the

district court did not sua sponte construe Scott's letter as a

motion to withdraw his plea and did not address the issue in any

way. Under these circumstances, Scott did not do enough to raise

in the district court an argument that his plea was involuntary on

the grounds that it was obtained by misrepresentation. See United

States v. Souza, 749 F.3d 74, 81 (1st Cir. 2014) (finding that the

defendant failed to preserve an argument regarding the exclusion

of specific pretrial time periods for speedy trial purposes where

the defendant's pro se filing "comprised vague complaints of delay

and accusations against the court, the government, and his

attorneys").

Nor did Scott have any good reason for failing to raise

in the district court the argument that he presses on appeal. To

the contrary, both Scott and his counsel knew before sentencing

precisely what they now say demonstrates the government's

misrepresentation. We therefore review Scott's argument only for

plain error. Fed. R. Crim. P. 52(b). In so stating, we

acknowledge that we have previously suggested (albeit not held)

12a

that de novo review is appropriate when a defendant claims he was

misled into pleading guilty. See Sotirion v. United States, 617

F.3d 27, 34 n.6 (1st Cir. 2010) (citing United States v. Goodson,

544 F.3d 529, 539 n.9 (3d Cir. 2008) for the proposition that de

novo review applies to a defendant's claim that he was misled into

signing a plea agreement containing an appellate waiver even where

he did not object in the district court). Nothing in that dicta,

though, considered what standard of review applies where the

defendant learns of a claimed misrepresentation prior to

sentencing. Subsequently, we stated that "we have yet to decide"

the applicable standard of review, Castro-Vazquez, 802 F.3d at 31–

32. Most recently, we reviewed only for plain error an unpreserved

argument that a plea was the result of a promise by counsel to

argue a point that counsel did not argue. See United States v.

Tanco-Pizarro, 873 F.3d 61, 64 (1st Cir. 2017). Without

foreclosing the possibility of de novo review for certain other

claims of involuntariness, we see no good reason to encourage a

defendant who is aware of an alleged misrepresentation to sit on

a claim of reliance until after he sees how the sentencing goes.

Cf. United States v. Vonn, 535 U.S. 55, 73 (2002) (noting that

"the incentive to think and act early when Rule 11 is at stake

would prove less substantial" if plain error did not apply).

To prevail under the plain error standard, Scott must make

four showings: "(1) that an error occurred (2) which was

13a

clear or obvious and which not only (3) affected the defendant's

substantial rights, but also (4) seriously impaired the fairness,

integrity, or public reputation of judicial proceedings." United

States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001).

So, in light of the foregoing, the first (and ultimately

the only relevant) question is this: Was it clear or obvious that

Scott's plea was the involuntary product of impermissible

government malfeasance? In arguing that it was, Scott relies on

Ferrara v. United States, 456 F.3d 278, 290 (1st Cir. 2006).

Ferrara states:

A defendant who was warned of the usual

consequences of pleading guilty and the range

of potential punishment for the offense

before entering a guilty plea must make two

showings in order to set that plea aside as

involuntary. First, he must show that some

egregiously

impermissible

conduct

(say,

threats,

blatant

misrepresentations,

or

untoward blandishments by government agents)

antedated the entry of his plea. Second, he

must show that the misconduct influenced his

decision to plead guilty or, put another way,

that it was material to that choice. In

mounting an inquiry into these elements, a

court must consider the totality of the

circumstances surrounding the plea.

Id. (citations omitted). Scott does not argue that the district

court failed to warn him of the consequences of pleading guilty or

of the range of potential punishment. Our analysis is therefore

limited to determining whether he has clearly made the two showings

required to prove that his plea was involuntary under Ferrara:

14a

egregiously impermissible government conduct and a decision to

plead guilty that was influenced by that conduct.

In this instance, Scott argues that the manner in which

the government used and then misrepresented its use of his

proffered information constituted the type of "egregiously

impermissible conduct" to which Ferrara refers. To put this

argument in context, we revisit the terms of the proffer agreement.

With several exceptions not relevant here, the agreement

only prevented the government from using Scott's statements or

other information provided by Scott "directly against him." The

agreement explicitly allowed the government to "make derivative

use of" and to "pursue any investigative leads suggested by[] any

statements made or other information provided by" Scott. Adding

belt to suspenders, the agreement further stipulated that "[a]ny

evidence directly or indirectly derived from the proffer may be

used against [Scott]."

The parties have long disagreed concerning the meaning

and application of these terms. Two examples illustrate the nature

of the disagreement. First, one of the government agents who

interviewed Scott used the results of the interviews to supply the

factual basis for a warrant to search the property of one of

Scott's co-conspirators, James Driscoll. This search yielded

records and information that inculpated Scott. Scott maintains

that -- because he was the source of the information leading to

15a

Driscoll and because his own files contained identical records -the use of Driscoll's files during the grand jury proceeding

violated the proffer agreement. The government disagrees,

characterizing Driscoll's files as proper derivative evidence.

Neither party secured a ruling on this point from the magistrate

judge or the district court.

Second, the government used computer files obtained

directly from Scott to secure a search warrant for V&L, which

allowed the government to seize the same records Scott had already

provided by consent. The government regarded the information

gathered from V&L to be derivative of Scott's proffer. Scott

disagreed, and the district court sided with him, suppressing all

files seized pursuant to the March 2012 V&L search as well as those

same files provided by Scott in May 2009.

With this context in mind, we turn to Scott's specific

argument. He points to the government's reported representation

in February 2013, implying that all the evidence it had presented

to the grand jury complied with the proffer agreement. That

statement was false, Scott says, pointing to a transcript of the

grand jury proceedings that the government provided to his counsel

two weeks before Scott pled guilty. Scott adds that he did not

receive that transcript through the prison mail until three days

after his plea was accepted and that, had he known that the

government's case presented to the grand jury relied on proffered

16a

statements, he would not have pled guilty. Rather, he would have

known that the government likely did not have sufficient untainted

evidence to convict him.

We have reviewed the transcript of the grand jury

proceeding and find nothing in it that clearly puts the lie to

anything later said by the government. To begin, the

representation made by the government at the status conference

(notably, before Scott had even filed his motion to suppress) was

not plainly wrong or even unreasonable. The proffer agreement and

the consent-to-search forms signed by Scott authorized very broad

derivative use of Scott's statements and of evidence seized from

him.5 And given that the government at the time was openly

maintaining that it could use Scott's statements to obtain a

warrant for derivative evidence, the government's representation

at the status conference merely reflected its present, disclosed

position on the wide scope of permissible evidence. No one would

have reasonably misunderstood the government's statements as

__________________

5 The

consent-to-search forms stated, in relevant part:

I have been advised of my right to refuse

to consent to this search, and I give

permission for this search, freely and

voluntarily, and not as the result of threats

or promises of any kind.

I authorize [FBI] Agents to take any

evidence discovered during this search,

together with the medium in/on which it is

stored, and any associated data, hardware,

software and computer peripherals.

17a

representing that it had presented to the grand jury only

information that would meet Scott's narrower definition of

permissible evidence, which even today seems at odds with the

language of the proffer agreement.

The fact that the government turned over the grand jury

transcripts to Scott's counsel two weeks before Scott pled guilty,

apparently without any reluctance, belies Scott's suggestion that

the government was attempting to deceive him until he entered a

plea and was sentenced. Moreover, this is by no means a case in

which the government played hide-and-seek with exculpatory

evidence. Cf. Ferrara, 456 F.3d at 292 (finding egregiously

impermissible government conduct where the prosecutors failed to

inform the defendant of a key witness's "plainly exculpatory"

recantation and pressured the witness to testify according to his

original story).

The examples listed in Ferrara -- threats, blatant

misrepresentations, or untoward blandishments -- make clear that

the government conduct must be "particularly pernicious," id. at

291, not merely "simple neglect," id., or "garden-variety" error,

id. at 293. We see no sign here, and certainly no clear sign, of

anything particularly pernicious. Ferrara also establishes that,

absent egregious misconduct, "a defendant's misapprehension of the

strength of the government's case" does not render his plea

involuntary. Id. at 291; see also United States v. Lara-Joglar,

18a

400 F. App'x 565, 567 (1st Cir. 2010) (relying on Ferrara for the

proposition that a defendant's "assessment of the prosecution's

case . . . cannot form the basis for a finding of

involuntariness"); cf. United States v. Allard, 926 F.2d 1237,

1243 (1st Cir. 1991) ("[T]he defendant may not later renege on the

[plea] agreement on the ground that he miscalculated or belatedly

discovered a new defense."). Contrary to Scott's assertions, that

is all we have here; at most, Scott may have incorrectly presumed

that the government's admissible evidence was stronger than it

actually was. But this is not a basis for treating his plea as

involuntary.

Scott's remaining argument does not persuade us

otherwise. Scott contends that the government engaged in

misconduct when it decided to continue prosecuting his case after

the district court granted Scott's motion to suppress. But Scott

cites no authority for the proposition that any implicit

representation in the government's decision to proceed with the

case could even qualify as a misrepresentation. Even if it did,

it would simply not rise to the level of government misconduct

addressed in Ferrara.

Because Scott cannot show clearly egregious government

conduct in this case, we need not address the second Ferrara prong

-- whether the government's conduct was material to the decision

to plead guilty. Nor need we consider the remaining prongs of the

19a

plain error test. To the extent Scott raises other challenges to

his conviction unrelated to voluntariness, these arguments are

waived as a result of his unconditional guilty plea. We therefore

affirm Scott's conviction.

B.

In addition to his challenge regarding the proffer

agreement, Scott also challenges his 135-month sentence. "We

review federal criminal sentences imposed under the advisory

Guidelines for abuse of discretion." United States v. Villanueva

Lorenzo, 802 F.3d 182, 184 (1st Cir. 2015); see also Gall v. United

States, 552 U.S. 38, 51 (2007). In doing so, we engage in a twostep

process: "First, we evaluate the procedural soundness of the

sentence; second, we assay its substantive reasonableness."

United States v. Madera-Ortiz, 637 F.3d 26, 30 (1st Cir. 2011).

Scott challenges both the procedure and the substance of his

sentence.

1.

Scott argues that the district court committed two

procedural errors. First, Scott argues that the district court

improperly calculated the Sentencing Guidelines range because it

wrongly included five properties in the loss calculation known to

the government only through statements Scott made in proffer

sessions. The Guidelines are clear that, absent certain exceptions

not relevant here, information collected pursuant to a proffer

20a

agreement "shall not be used in determining the applicable

guideline range." U.S.S.G. § 1B1.8(a).

We need not decide whether the court erred in finding at

sentencing that the government had "pointed to sufficient

independent sources" to justify the consideration of the five

properties because even if it did, Scott suffered no prejudice.

See United States v. Alphas, 785 F.3d 775, 780 (1st Cir. 2015)

("[R]esentencing is required if the error either affected or

arguably affected the sentence."). The five properties Scott

challenges had a loss amount of $1,119,050. The total loss amount

for which Scott was found liable by the district court was

$11,374,201.64. So even setting aside the five properties in

question, Scott would still find himself comfortably within the

range of $9,500,000 to $25,000,000 in total losses, which elicits

the same

offense level

increase of

twenty.

U.S.S.G.

§ 2B1.1(b)(1)(K)–(L). Because the inclusion of the five

properties had no impact on Scott's total offense level, and

because Scott has not challenged the amount of restitution ordered,

we cannot say that any error below "affect[ed] the district court's

selection of the sentence imposed." Williams v. United States,

503 U.S. 193, 203 (1992).

We also note that the district court gave Scott "the

benefit of the doubt" regarding the loss calculation, by reducing

the loss-related increase from twenty levels to eighteen. This

21a

further supports the conclusion that Scott was not harmed by the

court's consideration of the five disputed properties.

Scott's second claim of procedural error is that the

district court failed to adequately explain its reasons for Scott's

sentence, which in Scott's view is excessive and does not reflect

the circumstances of his offense. Although Scott presents this

argument in his opening brief as one relating to the substantive

reasonableness of his sentence, we address it as a procedural

challenge. See Gall, 552 U.S. at 51 (listing failure to consider

section 3553(a) factors and failure to adequately explain the

chosen sentence as examples of procedural errors).

Scott concedes that the district court "explain[ed] in

detail its GSR calculation, fully describing why it added each

enhancement." Nevertheless, Scott maintains that the district

court erred by failing to explain how it applied the section

3553(a) factors. We reject this argument. The district court

stated, immediately prior to imposing Scott's sentence, that it

had considered the section 3553(a) sentencing factors. We have

held that "[s]uch a statement 'is entitled to some weight,'"

especially where, as here, the court imposes a within-the-range

sentence. United States v. Vega-Salgado, 769 F.3d 100, 105 (1st

Cir. 2014) (quoting United States v. Clogston, 662 F.3d 588, 592

(1st Cir. 2011)). The district court in this case went even

further in justifying the sentence it imposed, stating that it

22a

"adopt[ed] the reasons advanced by [the government]" at the

sentencing hearing, which included the seriousness of Scott's

crime, the sentences imposed on similar defendants in other

mortgage fraud cases, and the need to deter Scott and others from

pursuing similar crimes. The court also expressed its

disappointment that Scott chose to use his "obvious intelligence

and ability" to enrich himself at the ultimate expense of

individuals in "the most vulnerable neighborhoods of Boston."

Given the district court's "lightened burden" to explain the

within-the-range sentence imposed on Scott, see United States v.

Pérez, 819 F.3d 541, 547 (1st Cir. 2016), this explanation was

more than sufficient.

2.

We turn now to the substance of Scott's sentence. A

defendant, like Scott, who seeks to challenge as unreasonable a

within-the-range sentence carries a "heavy burden." United States

v. Pelletier, 469 F.3d 194, 204 (1st Cir. 2006). While we do not

presume such a sentence to be reasonable, "it requires less

explanation than one that falls outside the GSR." Madera-Ortiz,

637 F.3d at 30. "[A] defendant would usually have to adduce fairly

powerful mitigating reasons and persuade us that the district judge

was unreasonable in balancing pros and cons despite the latitude

implicit in saying that a sentence must be 'reasonable.'" United

States v. Navedo-Concepción, 450 F.3d 54, 59 (1st Cir. 2006).

23a

Scott cannot make this showing. Notably, Scott was

sentenced not only within the applicable guidelines range, but at

the very bottom of that range. Nevertheless, Scott argues that

his sentence is substantively unreasonable because it is

disproportionate to the sentences imposed on his co-defendants and

others involved in the mortgage fraud scheme. Scott, though, fails

to "compare apples to apples." United States v. Reyes-Santiago,

804 F.3d 453, 467 (1st Cir. 2015). Co-defendants Fowler and Raetz,

both of whom were given 24-month sentences, "were not connected to

all the properties at issue." According to Scott, Driscoll

"appears to not have been prosecuted at all." And Anderson, who

was also sentenced to 24 months in a separate case, was a real

estate attorney who assisted during the properties' closings. In

contrast, Scott was found to be an organizer of the entire scheme.

Because Scott has not "isolate[d] 'identically situated'

codefendants" to demonstrate a sentencing disparity, there is no

basis for concluding that his sentence was unreasonable. Id.

(quoting United States v. Rivera-Gonzalez, 626 F.3d 639, 648 (1st

Cir. 2010)).

III. Conclusion

Finding no reason to upset Scott's conviction and

sentence, we affirm.

24a

United States Court of Appeals

For the First Circuit

______________________________

No. 15-2405

UNITED STATES,

Appellee,

v.

MICHAEL DAVID SCOTT,

Defendant - Appellant

__________________

MANDATE

Entered: December January 30, 2018

In accordance with the judgment of December 8, 2017, and pursuant to Federal Rule of

Appellate Procedure 41(a), this constitutes the formal mandate of this Court

By the Court:

/s/ Margaret Carter, Clerk

cc:

Dina Michael Chaitowitz

Ryan Michael Santis

David Brian Goodhand

George F. Gormley

Michael David Scott

William D. Weinreb

Victor A. Wild

25a